Freedom of expression and sedition paper


The Sedition act of 1798 allowed that anyone found guilty of making false statement with the intent to oppose the federal government, or to disregard sedition within the United States was punishable (Ragsdale, 2005). The English and the American courts had used a collection of court precedents and traditions to prosecute individuals for this kind of sedition libel rather than acts of a legislature. The collection of precedents and traditions included drastic penalties for even any general criticism of the government.

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However, the federal courts were doubted that they had jurisdiction over common law crimes, with this, the Sedition Act provided the statutory authority for federal prosecution of sedition libel. The act incorporated recent liberalizations in American and English practices, such as permitting the truth as a defense and allowing juries to determine whether the law properly applied to the case. However, Federalist argued that the act aimed at Republican printers who had been most critical of the Adams administration.

   Between 1798 and 1801, in the midst of the threat of war with France, at least twenty-six individuals were prosecuted in U.S. federal courts on charges of publishing false information or speaking in public with the intent to undermine support for the Federal Government. The accused included editors of the most influential opposition newspaper in the nation. These prosecutions under the sedition act of 1798 provoked debates on the meaning of a free press and the rights of the political opposition.

    The expiration of the Sedition Act on March 3, 1801, failed to settle questions about the legal limits of political speech and the right of the political opposition to criticize officeholders and the government. When Republicans became the object of content in the  newspaper attacks during the following decade, some of them were willing to prosecute Federalist editors for seditious libel. President Thomas Jefferson, stung by relentless personal criticism, suggested that selected prosecutions in the state courts would help to temper the partisan press. The state prosecutions, however, remained relatively infrequent and largely ineffective in slowing the development of a partisan press (Carole & Bos, 2001)

    Although seditious libel prosecutions of partisan newspapers would not entirely disappear until the 1830s, more and more Americans accepted the right of the political opposition to criticize the government. A new political culture based on widening rights awareness, broader citizen participation, and greater competition for votes made older notions of seditious libel unworkable and irrelevant.

    On May 16, 1918 the sedition act, which was an amendment to the Espionage Act, was passed, making it a crime to attempt or obstruct the military recruiting service for the First World War. The new provision of the Espionage law substantially tightened the section on expression by adding language effectively thus preventing anyone from interfering with the operation of the military recruitment of the united states in any way.  It was criminal offense to utter, print, write, or publish disloyal or use a language that could incite people against the federal government, or any intention to cause contempt of, or scorn for, the federal government, the Constitution, the flag or the uniform of the armed forces (Ragsdale, 2005).

     Penalties for violation of the law were imprisonment for as long as 20 years or a fine of $10,000 or both. Approximately 2,000 people were prosecuted under these espionage and sedition laws, and nearly 900 were convicted. Persons who found themselves in the government’s dragnet were usually aliens, radicals, publishers of foreign-language publications and other persons who opposed the war. Free speech in America, guaranteed by the first amendment to the country’s constitution, was soon put to test (Carole & Bos, 2001).

Jacob Abrams case:

Jacob Abrams against United States case was during the time while America intervening into the Russian Revolution. The case involved the 1918 amendment to the Espionage Act of 1917, which made it a criminal offense to criticize the U.S. Federal Government. The case was overturned during the Vietnam War Era in Brandenburg against Ohio.  The decision was based on Holmes’ argument of “clear and present danger (Carole & Bos, 2001).

    Holmes’s dissent in the Abrams case was viewed as the beginning of the Supreme Court’s concern with speech as a key right in the democratic society. In 1918, Jacob Abrams and three other defendants were charged with printing an anti-war pamphlet, violating the Espionage and Sedition Acts. According to the opinion of the court, Abrams and the others advocated a strike in munitions production and the violent overthrow of the Government. Their arrest and convictions were part of a broad dragnet aimed at radicals, and especially immigrants. In the name of wartime national security, constitutional protections were simply scrapped.

Although Abrams and his co-defendants lost the case, Holmes’s broad argument for free speech regained its place in American culture, stronger than before. In their defense, Holmes opinion was that Abrams and others should not be viewed as criminals due to their writings. He argued that if in the event the threat poses no “clear and present danger,” the best place to dismiss dangerous or disagreeable ideas is in the market place of ideas.  Persuasion is more persistent than imprisoning people with dangerous and disagreeable ideas (Carole & Bos, 2001). He also said that there was no enough evidence to promote danger and hinder the success of the government. “Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so” (Ragsdale, 2005).

He continued to say, “Advocacy of a general strike do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of 1917. But to make the conduct criminal that statute requires that it should be with intent by such curtailment to cripple or hinder the United States in the persecution of the war.” He argued that the first amendment should protect Abrams freedom of speech. Although it was argued that the Espionage Act was unconstitutional and in conflict with the First Amendment, it was argued briefly and Abrams were found guilty by the original court.

Schenck 1919 case:

Schenck and his fellow socialist had viewed the new Selective Act unconstitutional discussed their opinions, and concluded that drafting someone into the military was against the 13th amendment to the united states constitution on involuntary servitude. They prepared leaflets about the draft, which criticized the law and distributed them. Scheck was arrested and charged under the Espionage Act for conspiring to cause insubordination in the armed forces and obstructing the government’s efforts to recruit and enlist troops to fight the war (Carole & Bos, 2001).

Charles Schenck’s case led to the Supreme Court’s first decision on the issue of free speech. Holmes, whom many lawyers consider one of the finest jurists in American history, wrote the high court’s unanimous opinion. This case concerns the First Amendment protection of Freedom of Speech, the case led to the Supreme Court’s first decision on issue of free speech. Holmes wrote the decision using thought provoking phrases that many marveled at in the court. The decision upheld the convictions of Schenck and another defendant for violation of the Espionage Act. The defendants had been convicted of conspiring to “obstruct the recruiting and enlistment services of the United States.” The most famous phrases that come from this case state that protection of free speech does not include “falsely shouting fire in a theatre…”. Holmes also wrote that the real question comes down to whether the words spoken present a “clear and present danger…” (Carole & Bos, 2001).

The justices upheld Schenck’s conviction. In the court’s ruling, it was said that in times of war , the government may pass laws which restricts action that are not restricted in time of peace. However, Holmes in Schenck defense and said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” he argued that unless there is real fire, a person could not shout fire in a crowded theater (Carole & Bos, 2001). Holmes tried to argue when a speech may be acceptable and when it may not be. It was proofed that the leaflets did not prevent induction of any one in the military but the court upheld Schenck’s conviction because the leaflets could have caused such an action.

Giltlow’s case 1925:

The Supreme Court first applied the Bill of Rights to the states in 1925 in the Gitlow

Case. Benjamin Gitlow was a Socialist Party member who had been convicted of writing

several revolutionary pamphlets advocating violent overthrow of the government (Mamerweb, 2003). He was thus charged with violation of New York’s Criminal Anarchy Act. His attorneys argued that the New York law violated Gitlow’s First Amendment freedom of  speech. They contended that the due process clause of the 14th Amendment protected a citizen’s freedom of speech from state laws as well as national law.

While upholding Gitlow’s conviction, the Supreme Court ruled for the first time that the First Amendment on freedoms of speech and press “are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This marked the case to have the first step in the judicial development of selective incorporation to note that the states were not completely free to limit political expression and also it was the first case to offer protection of civil liberties from infringement by states (Carole & Bos, 2001).

The Supreme Court did not say in the Gitlow decision that all the protections of the Bill

of Rights applied to the states. However, the majority of justices did agree that at least some of these rights limited the powers of state and local governments. Following this landmark decision, the Supreme Court on a case-by-case basis applied most of the guarantees of the Bill of Rights to the states. When the last of these cases was decided in 1969, the Supreme Court had created what amounted to a “second bill of rights” limiting the actions of state governments just as the original Bill of Rights had limited the national government (Mamerweb, 2003).


Carole D. & Bos, J. D. (2001). Awesome stories. Retrieved on July 15th, 2010 from

Mamerweb AP Government and politics. (2003). The 14th Amendment and the Second Bill of Rights. Retrieved on July 15th, 2010 from

Ragsdale, A.(2005). The Sedition Act Trials. Prepared for inclusion in the project: federal Trials and Great Debates in the United States History. Retrieved on July 15th, 2010 from$file/seditionacts.pdf


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